https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7308

Lesingei v Republic (Criminal Appeal E067 of 2023) [2026] KEHC 7308 (KLR) (25 May 2026) (Judgment) Neutral citation: [2026] KEHC 7308 (KLR) Republic of Kenya In the High Court at Nanyuki Criminal Appeal E067 of 2023 AK Ndung'u, J May 25, 2026 Between Riziki Lesingei Appellant and Republic Respondent (Being an Appeal from the conviction and sentence in Nanyuki CMCCRC No. 1001 of 2020 delivered by Hon. B. Mararo (SRM) on 31st August 2023) Judgment 1.The Appellant was charged with and convicted for three counts of the offence of Robbery with Violence contrary to Section 296(2) of the Penal Code and Grievous harm contrary to Section 234 of the Penal Code. The particulars of the first count were that on that on the 23rd day of June, 2020 at Narasha grazing field in Anandanguro village of Laikipia north sub-county, the Accused person herein, jointly with others not before the court and being armed with dangerous weapons namely firearms, robbed Norman Elikan a herdsman of 23 cattle valued at Kshs. 1.2 million that belonged to Stephen Ngila. 2.The particulars of the second count were that on that on the 24th day of June, 2020 at Mukogodo forest in Laikipia north sub-county, the Accused person jointly with others not before the court robbed Force No. 0.xxxx National Police Reservist Constable Koske Olemoile of his AK47 rifle S/No. xxxx valued at Kshs. 70, 000/- and at the time of the said robbery, shot and killed the said constable. 3.The particulars of the third count were that on that on the 24th day of June, 2020 at Mukogodo forest in Laikipia north sub-county, the Accused person jointly with others not before the court unlawfully did grievous harm to Force No. 0.xxxx National Police Reservist Constable Matnaya Ledan Nanguye. 4.The matter proceeded to full hearing and the prosecution called 16 witnesses whereas the appellant gave sworn testimony and opted not to call any witnesses in his defence. Upon considering the testimonies and the evidence tendered in court, the trial court convicted the Appellant on all three counts and sentenced him to death on counts 1 and 2, and ten years imprisonment for count 3, which was held in abeyance. 5.Being aggrieved with the decision of the trial court, the Appellant instituted the present appeal vide a Petition of Appeal dated 4th September 2023 premised on the following grounds;1.That the learned trial magistrate erred in matters of law and fact by convicting and sentencing the appellant without considering that the prosecution did not prove the case beyond reasonable doubt.2.That the learned trial magistrate erred in matters of law and fact by failing to note that there was no adverse first report against the appellant and that the Identification Parade was not conducted as per the requirement of the law,3.That the learned trial magistrate erred in matters of law and fact by failing to note that the mandatory death sentence meted upon the appellant was harsh and exorbitant;4.That the learned trial magistrate erred in matters of law and fact by failing to appreciate that the appellant gave a reasonable defence which exonerated him from the offence;5.That the learned trial magistrate erred in matters of law and fact by failing to note that the identifying witness did not give prior description of the appellant before the ID Parade.6.That the learned trial magistrate erred in matters of law and fact by failing to note that the Police did not follow procedure of ID parade as only the appellant had one leg.7.That the learned trial magistrate erred in matters of law and fact by quashing the appellant defence without cogent reasons.8.That the learned trial magistrate erred in matters of law and fact by failing to note that am a person with disability hence my stay in prison will deteriorate my health. 6.The parties canvassed the Appeal by way of written submissions. However, at the time of writing this decision, the Appellant was yet to file any submissions. Respondents’ submissions 7.Counsel urged that the ingredients of the offence of Robbery with Violence were stated in Mohamed Ali v Republic [2013] eKLR. He reproduced the testimonies of the witnesses and urged that it is evident that Prosecution discharged their burden of proof and managed to bring out all the ingredients required to prove a case of robbery with violence. That from the evidence it is clear that:a.PW1 was robbed of the cattle he was grazing on the material date.b.PW1 recognized the Appellant as one of the men who robbed him on the material date.c.The Appellant in the company of three other men, used a gun to threaten at the time of the robbery. 8.It is submitted that the upshot therefore is that PW1 was robbed by the Appellant who was in the company of three more people who were not brought before the court. During the robbery, they used an offensive weapon (a gun) to threaten PW1 into submission and managed to rob him of 23 cattle. The occurrence of the events of the robbery all satisfy the ingredients of the offence and were proven beyond reasonable doubt. 9.Section 234 of the Penal Code is cited for the provision on the offence of Grievous Harm and Section 4 of the Penal Code which also defines grievous harm. He cited the case of Pius Mutua Mbuvi v Republic [2021] eKLR and urged that the prosecution through oral testimony of PW3 and medical evidence proved that indeed the victim sustained grievous harm. PW3 gave a detailed account of how he was assaulted by the Appellant and the treatment he underwent at both Cottage hospital pursuant to the injuries sustained during the shootout as they tried to recover the stolen cattle. The injuries were captured in the P3 form which was produced by PW9 and the injuries sustained were classified by the Clinical Officer as being grievous harm. 10.Counsel urged that PW3 stated that he saw the face of the person that shot him. He also managed to single out the appellant from the ID parade as the person that shot him. That his testimony on the identity of the person that shot him was very solid and there could have been no error. Further, that when one is faced with a situation where their life could be taken by an opponent, and the said opponent causes them such grievous harm, it is highly unlikely that one would forget the face of the person that nearly took his life. That the evidence as laid out by the prosecution was sufficient in proving the case against the Appellant beyond reasonable doubt. 11.On the issue of the identification, reliance was placed on the case of John Mwangi Kamau v Republic [2014] KECA168 (KLR) and it is submitted that PW1 was the first one to identify the Appellant and that from his testimony, it is evident that he could not have been mistaken as to who attacked him. It was afternoon and there was enough daylight and nothing would have impeded his observation at that time. Further, that PW3 also identified the Appellant positively and therefore, the identification was solid and it was not just dock identification that was relied on like the Appellant wants this court to believe. 12.Counsel cited Paul Vs. Republic KLR 100 which deals with the law on circumstantial evidence and urged that it is from the evidence of PW3, 4, 5, 6, 7, and 8 who were all among the officers who went in search of the stolen cattle and engaged in the shootout that ensued that they draw our conclusion that the Appellant was involved. The Appellant did not give a plausible explanation as to how or where he got the gunshot wound he was being treated. Furthermore, the age of the injury aligns with the time of the robbery which is devoid of a plausible explanation save for the explanation that the appellant was involved. It is based on these other factors that the inculpatory facts are incompatible with the innocence of the Appellant and incapable of explanation upon any other hypothesis other than that of guilt. 13.On the identification parade, Counsel cited the case of Nathan Kamau Mugwe —vs- Republic- Criminal Appeal No. 63 of 2008 and urged that the identification parade was proper and enough to secure a conviction. That the key identifying witnesses did not give a description of the Appellant in their initial report cannot invalidate the identification parade. 14.Further, on the allegation that he was easily distinguishable from the other members of the parade as he had a disability which made it prejudicial to him, counsel urged that PW1 and PW3 who were the key identifying witnesses both mentioned that during the parade they were only able to see the bust and faces of the members of the parade. The rest of their bodies were covered from the waist down. Their testimony is corroborated by PW14 who was the officer in charge of the identification parade. That from PW14’s testimony, it is evident that the parade was conducted in accordance with the standing orders and the same cannot be said to have been so flawed so as to warrant an acquittal. 15.Counsel reproduced the Appellant’s’ testimony and urged that the Appellant did not call the said uncle who took him to the hospital after the said motorcycle accident to corroborate his story. He did not avail any medical documents to corroborate his defence either did he call any doctors who attended to him following the accident to confirm that they indeed treated him for the injuries he sustained from the motorcycle accident. The accident was also not reported neither was there an insurance claim by the Appellant. The explanation he gave to PW13 was that he sustained the gunshot wound from a friend of his at Oldonyiro. PW13 further confirmed that he was treating him for a gunshot wound which the Appellant did not dispute even in cross examination. Counsel maintained that the Appellant’s defence was marred with mere denials which in our opinion were insufficient and could not cast any doubt on the overwhelming evidence advanced against him by the prosecution. 16.On sentence, Counsel cited the case of MMI v Republic [2022] eKLR, and Mokela vs. The State (135/11) [2011] ZASCA 166. He urged that Section 296 of the penal Code prescribes a death sentence for the offence of robbery with violence while Section 234 of the penal code prescribes a life sentence for the offence of Grievous harm. The trial court was well within its’ discretionary powers to impose the multiple death sentences on counts one and two depending of the peculiar circumstances of the instant matter. 17.In the third count, the trial court imposed a 10-year sentence. The trial court further stated that the sentence in the third count be held in abeyance. Counsel urged that there was no misdirection in terms of sentencing on the part of the learned trial Magistrate and neither has any other plausible reason been advanced to warrant this court to interfere with the sentence imposed by the trial court. He urged the court not to interfere with the sentence and dismiss the Appeal in its entirety. Determination 18.As a first appellate forum, this Court is obligated to revisit and re-evaluate the evidence afresh, assess the same and make its own conclusions, bearing in mind that the trial Court had the advantage of hearing and observing the demeanour of the witnesses. (See Okeno vs. Republic [1972] E.A 32). 19.PW1 was Norman Eriki from Marwa Doldol who testified that on 23/6/2020 he was herding cattle at Ngile near a place called Serara. That at 3:30 p.m. he was kidnapped by 4 thieves armed 3 guns who surrounded him and took 24 cows. He saw their faces and realized he knew them and they threatened to shoot him if he did not lie. He was later left in a thicket called Rimba and he then left for home and later informed Stephen Ngile the owner of the cattle who reported to the police. 20.He testified that on 24/6/2020 he was told that the cattle had been found but one had died. They were brought back home and he identified them. he produced 5 photos as PMF1A-E. he stated that the accused persons had green shirts and a black headscarf. He was later called to Doldol Police Station to record a further statement and they were put in a room where they did an identification parade involving 5 people. He selected the accused as he knew his face. Further, that he remembered as when they took the cattle it was during the day and they spoke to him and he mastered their faces. The accused was among the 8 people. 21.During cross examination he stated that he saw the accused when they robbed him and that had missing teeth. 22.PW2 was Stephen Kasoli Ngila who stated that on 22/6/2020, PW1, his herder, was grazing his animals. That in the evening at 6:00 p.m. he told him 24 cattle had been stolen as he returned. That the people were four, with three armed, and one with no weapon. He then went and reported to the police. The next day they traced the animals and eventually asked for help from Borana Ranch who offered their helicopter and they said they had spotted the cows. They gave them the location and found 23 of his cows which he identified but one bull was missing. They later learnt that one conservancy officer Koskey Muli was missing and his body was later found and he had been shot. He also learnt that Lonyanga, one of the rustlers had been shot. 23.PW3 was Matnaye Ledan from Borana conservancy. He stated that on 23/6/2020 at about 5:00 p.m. they were called by their supervisor and told there were cows that were stolen belonging to Stephen Ngila. They traced the animals and eventually asked for Air assistance and the cows were spotted. They went to where the animals were and were attacked by people who shot at them and they back. They went to where the cows were and found blood near the cows. That there was someone on his right side who shot him on the left side (hip). He saw the person who shot him and later, he did an identification parade with PW1. He identified the accused during the parade. 24.He stated that Koskei was also armed with an AK 47 rifle S/No. xxxx. That the rifle had been stolen and was recovered later. He stated that he saw accused when he shot him. Further, that he was injured on the stomach when he was shot as the bullet passed through his stomach. He got a P3 Form from DolDol Police Station which was filed and returned. He produced the same as PMFI 5. 25.During cross examination, he stated that it was the accused who shot him as he was 5 meters away. 26.PW4 was Cyrus Kisio a guard and National Police Reservist No. 0xxxx who stated that on 23/6/2020 he was at work when they learnt that there was an incident where cattle belonging to Stephen Ngile had been stolen. They went to the scene of crime and the next day, they traced the animals and found where the cattle had spent the night and the thieves had cooked food. They followed the hoofmarks and police from DolDol joined them. They then located the thieves and the animals and asked for air support. The chopper managed to spot the animals and they proceeded to the location. They advanced to where cows were and as shootout began and PW3 was shot but he did not see the shooting. 27.That PW3 was airlifted for treatment and the Chopper came with 4 officers and they went and recovered 23 cattle one had been injured. They then escorted cows to PW2’s home. The next morning, they investigated looking for Koskei and found his body when they returned to the scene of the shootout. Koskei had an AK 47 that was missing. He identified PMF1 IV S/No.xxxx. 28.PW5 was Samuel Leki from Lewa Northern Regional Trust. He stated that on 23/6/2020 they got a report of cattle theft at Nari Ngiro. They were told that guards from 4 conservations, Borana, Ole Diru, Olingwesi and Likirot followed the stolen cows. On 24/6/2020 he was informed they were following up and there was a fight between the police and rustlers. One scout got injured after they sent helicopter and the other was not found. He was later told that the body of the missing ranger had been found and his weapon taken way. They later got information of a person with gun injuries at Wamba who had been taken to Isiolo. He informed police of a person with gunshot injuries and he saw the accused when he was arrested. He had a purple shirt and was bandaged and he saw his injury as a result of which the leg was rotten. 29.PW6 was Joseph Kathurima Mutuma. He stated that he was called by his boss on 24/6/2020 and told to get people to help find a scout who was lost, and to help NPR Officers from different conservancies. They went into the forest to look for him but did not get anything until the next morning. At 5:30 a.m. they heard people talking who fled when they saw them. the later found the dead scout who had injuries and did not have his rifle. They followed the bandits till 5:00 a.m. when they heard people in the forest but could not tell who they were. He stated that he did not know the accused or who killed the reservist. 30.PW7 was Mungai Zaphaget from Borana Conservancy Laikipia North. It was his testimony that on 23/6/2020 he was informed by the commander in charge that there were cattle stolen belonging to Stephen Ngile. They formed a group and went to the home of Stephen Ngile. They traced the animals by following hoofmarks to a place called Narumoru, got two more officers and continued following the hoofmarks. They called for an aircraft and the cows were spotted. A fight ensued and told the bandits overpowered police. They went as reinforcement and confronted them, and recovered 23 animals 23. One was injured and they left it behind. 31.He stated that they drove towards Stephen Ngile’s place and learnt that there was a missing soldier from the other team. They then took 21 cows to Stephen Ngile’s place and returned to Borana conservancy. A team was dispatched and the other body was found but his weapon was missing. He stated that he led them to where animals found and when shown PMF1 3 A-D, he stated that the dead officer was Martnaya Ledan (PW3). 32.PW8 was Peterson Kimili who stated that he worked at Borana Conservancy. That on 23/6/2020 and 24/6/2020 at 5:00 p.m. his boss in charge of security called him and told him a cow belonging to Stephen Ngile had been stolen. They went to Narumoru Police Post and got 2 police and joined others totalling 16. They split into 2 teams and he was in team 2 under commander Munya. They slept at PW1’s and the next morning they went with the herder who took them to where he left the cows. That they followed hoofmarks and found where they slept and foot marks of 4 people. The 2nd team spotted cows but there was a communication problem and they then got an aircraft. They communicated with team 1 who said one had been injured and they reinforced them. he stated that they managed to get the cows and no one was arrested. Additionally, that they learnt that their colleague was taken to hospital. 33.During cross examination he stated that he did not know the accused and did not see who was injured. 1 am telling the truth 1 do not know you. 34.PW9 was Salat Guyo a Cinical officer who produced the P3 form for PW3. He stated that the patient had a gunshot wound with an entry and exit wound. 35.PW10 was PC Gilbert Obuk who stated that on 5/7/2020 they were summoned by DCIO and informed that there was a suspect found at Samburu Hospital being treated of a gunshot would. Before that on 31/5/2020 there was a robbery at Olnato Vinil and people stole cows from grazers. Two were shot dead, and one had fled with gunshot wounds. He stated that they investigated and suspected that one of the escapees could be the one at Wamba District Hospital. They went to Wamba and learnt that someone had gone to seek treatment at Wamba District Hospital. He had told the DCIO that he had been bitten by his friend as they played. They found the doctor and told him that they were looking for some robbers who had stolen cattle’s and fled with gunshot wounds. They found the patient who had an injury to the leg and asked for P3 Form and treatment notes from Wamba District Hospital. He produced the Treatment notes dated 5/7/2020 as PMFI 6., the P3 Form 5/7/2020 as PMF1 7. They then took the patient. 36.He stated that they received information on 7/7/2020 from DCI Laikipia North that there was a case of robbery with violence and one of the NPRs had been killed by rustlers, and one of the rustlers was shot on the leg and had fled towards Samburu. That they gave the DCIO Laikipia North the accused and that for the DolDol case the person was known. 37.During cross-examination he stated that they could not investigate that accused had been shot by his friend. 38.PW11 was Dr. Ayub Macharia who stated that he performed post mortem on 1/7/2020. His main findings were; External appearance - gunshot wounds; Entry wound at the back at side 2x1 in dimensions. ; Exit wound - left upper chest region 9x3cm and 2nd gunshot Entry - left upper arm 1cm x 1cm Exit - left inner ... of upper arm. On Internal examination ; Bilateral haemothorax - accumulation of blood on left/right sides. Right lung straddled due to the impact of projection; Heart torn on upper half; Heart detached from vessels/iota/pulmonary artery and venicure (torn). After examination the Cause of death was marked gunshot wounds. 39.During cross examination, he stated that there were 2 entry wounds the one from backside exiting right upper shoulder. 40.PW12 was Evo Mulee Senior Chief Mailel location. He stated that on 1/7/2020 there was theft of cows, and the police pursued the bandits and one soldier was shot and he died. He went to identify the body. 41.PW13 was Dr. Francis Maundu who examined the appellant on 5/7/2018 at Samburu Sub County Hospital. He referred to PMFI VII.and stated that the patient had a rotten wound with a foul smell. That it was infected, had maggots and fractures. There were sutures showing and signs of prior attempts to repair upper wound which was at the stage of healing. The injuries were aligned to a gunshot wound. 42.PW14 was IP Josphat Adan Isaac. He testified that on 3/8/2020 while at DolDol police station they conducted an ID parade. The first witness identified the Accused by touching between Accused 4 and Accused 5. The Accused said he did not want to move and the 2nd witness was identified by touching as he was between number 4 and 5. He asked the accused if he was satisfied and he stated that he was. he signed the report and there was no objection from the accused. He produced the Identification parade certificate as P Exhibit IL10. 43.During Cross-examination he stated that they had 8 people in the parade including the accused. They were standing in an enclosed area. That in view of the accused’s condition he was covered from abdomen below and was between position 4 and 5. He did not change his position after being identified by 1st witness. 44.That the people in the parade were from DolDol centre with similar physique and were hidden from the stomach downwards. 45.PW15 was Dr. Francis Muoka who examined the Appellant and testified that he filed a P3 form. that he had stated he had been shot by a friend and there was a foul smell from the injury. He made the following observations; Lower limb - small wound on the upper foot. There was a large wound with maggots. Approximate age of injury – weeks; Cause of damage (weapon); Bullet (entry/exit wound there was an attempted repair. There were sutures. 46.During cross examination, he stated that the wound had pus and maggots and was probably one week old as the wound was rotten. That there was attempted repair in a health facility. 47.PW16 was PC Geoffrey Sitati Barasa who stated that on 25/6/2020 he was told that there was a NPR who had been shot while pursuing cattle. They boarded land cruiser and when they got there they found NPR (Koskey) who had been brought from the forest. They took photographs of the body then took it to Nanyuki mortuary. He later learnt that one of the bandits had been shot and they went to Wamba Hospital (Mission). He was arrested by Laikipia East officers who handed him over to them on 5/7/2020. On 14/7/2020 he was admitted at Nanyuki Teaching Hospital and his leg had maggots. The leg was amputated after 2 days and he was discharged 29/7/2020 after amputation. On 3/8/2020 in an identification parade done by PW2/PW3 the accused identified as one of the bandits who stole cattle. He stated that he took photos of the deceased and the recovered cattle and DCI produced them and issued a certificate. They later learnt that the recovered rifle recovered at Kipsi and it was brought to GSU camp. He took it to Laikipia North Arms movement and confirmed that the deceased NPR had been issued with it. It was AK 47 no. xxxx with empty magazine and was issued with 30 rounds of ammunition. He produced the Photographs (Deceased) as PMFI 9A-D, P Exhibit 3 A-D Arms movement register - P Exhibit 9 AK 47 rifle - P Exhibit 10A- Empty Magazine - P Exhibit 1 OB P3 Form (Accused) - P Exhibit 7 P3 Forms PWD - P Exhibit 5 Investigation diary - P Exhibit 11 48.During cross-examination he stated that no cattle were recovered from the accused and that there is no direct link between Accused and A.K. He was in the company of others. G 49.DW1 was Riziki Lesengei who stated that he was at Wamba hospital to be treated as he had a motorcycle accident on 3/7/2020. He denied being shot or having stolen cattle and further, stated that no cattle were recovered from him. 50.During cross examination, he maintained that he was involved in an accident on 3/7/2020 and arrested on 5/7/2020. That he went to Wamba Mission Hospital and told the doctor that he was involved in a RTA. Additionally, he stated that it was his uncle who took him to the hospital. He further stated that he attended identification parade and was identified by PW1. That he was the 9th person on the line and the only one who had crutches and were standing. He denied ever seeing any of the prosecution witnesses. Analysis & DeterminationThe following issues arise for determination;1.Whether the prosecution proved its case beyond reasonable doubt2.Whether the sentence was harsh or excessive Whether the prosecution proved its case beyond reasonable doubt 51.The elements of the offence of robbery with violence were set out in section 296(2) as follows;“296.Punishment of robbery(1)Any person who commits the felony of robbery is liable to imprisonment for fourteen years.(2)If the offender is armed with any dangerous or offensive weapon or instrument, or is in company with one or more other person or persons, or if, at or immediately before or immediately after the time of the robbery, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death. 52.The above provision was elaborated by the Court of Appeal in the case of Oluoch vs Republic [1985] KLR in the following terms:“Robbery with violence is committed in any of the following circumstances:a)The offender is armed with any dangerous and offensive weapon or instrument; orb)The offender is in company with one or more person or persons; orc)At or immediately before or immediately after the time of the robbery the offender wounds, beats, strikes or uses other personal violence to any person ………” 53.Further, in the case of Dima Denge Dima & Others vs Republic, 2013 eKLR, the Court of Appeal explained further as follows:“…The elements of the offence under Section 296 (2) are three in number and they are to be read not conjunctively, but disjunctively. One element is sufficient to found an offence of robbery with violence.” 54.It is therefore apparent that for a charge of robbery with violence under Section 296(2) of the Penal Code, it is not a requirement that all the 3 elements must be proved. Proof of any one of the 3 elements is sufficient to establish the offence. 55.The Appellant was identified by three of the witnesses and his identification was fortified by the identification parade conducted by PW14. PW1 testified that the Appellant was among the 3 men who abducted him on the material date when they stole the cows and that they were armed. During the identification parade, there were 2 witnesses who touched the accused when he was placed in the identification parade and the report was produced as PExhibit 2. Having considered the testimonies of PW1 and PW3, who he shot, and the Identification parade and PW14’s testimony, it is my considered view that the identification of the Appellant was safe and proper. 56.This evidence is fortified by the evidence of the doctors who examined the Appellant. The first is PW13 whom the Appellant told that he had been shot by a friend. The doctor confirmed the injury was from a gunshot. The foot was rotten as the Appellant had not gone to hospital immediately after injury. This evidence is also corroborated by PW15 who also confirmed that the injury was from a gunshot and the foot was rotten. 57.In rejoinder to this evidence of identification and corroboration by the doctors, the Appellant in his defence states that the injury was from a motorcycle accident. This is a line of defence that had not been raised at all during cross examination of witnesses. It is a bizarre defence plucked from the air and totally unbelievable given the nature of the injury, lack of a report to the police and the failure to call any witness who could have witnessed the accident if at all. In any event the doctors gave expert testimony on the cause of injury. 58.It is clear to this court that the Appellant was shot when he and others were accosted while with the stolen animals. Knowing that appearing in hospital with a gunshot would elicit inquiries would give him away, he avoided official treatment until the leg got worse. This explains the rotten leg. 59.This evidence, coupled with evidence of identification at the scene and confirmed in an identification parade places the Appellant at the centre of the commission of the robbery and injury to PW3. 60.As to whether he was armed, there was corroborated testimony in this regard. PW1 testified that the Appellant was armed at the time they took the cattle he was herding. PW3 testified that the Appellant shot him and he produced a P3 form to this effect. Additionally, he pointed him out in the parade as the assailant who shot him. PW4 also corroborated the evidence on the shooting of PW3. Notably, the gun that he used to shoot was not produced as evidence. In any event, during the robbery he was in company of others which qualifies the offence to robbery with violence. 61.Additionally, the Appellant was found with the stolen animals at the time when he engaged the Plaintiffs’ witnesses in a gunfight which resulted in the shooting of Koskei, the deceased and the injuries to PW3. This was soon after the animals had been stolen. 62.On Count 2, PW1 and PW3 were clear in their testimonies that the Appellant was among the robbers who killed Constable Koskei Olemoile and robbed him of his AK 47 rifle serial no. xxxx. He equally used force in the commission of this offence as well. Despite stating that the injuries he sustained were from a motorcycle accident, no evidence was tendered in this regard. 63.On Count 3, it emerged from the evidence that when he shot PW3 he occasioned him injuries that were classified as grievous harm by PW9, the clinical officer who examined him and produced the P3 form in evidence. The evidence with regards to all the counts was sufficiently corroborated by the medical evidence and was, I reiterate, very consistent. 64.Having considered the totality of the evidence, the testimonies of the witnesses and the submissions of the parties, it is my considered view that the prosecution proved its case beyond reasonable doubt. Whether the sentence was harsh or excessive in the circumstances 65.The principles guiding an Appellate Court when considering sentence was stated in Mbogo & Another v Shah (1968) 1 EA. 93 thus: -“…a Court of Appeal should not interfere with the exercise of the discretion of a judge unless it is satisfied that the judge in exercising his discretion has misdirected himself in some matter and as a result has arrived at a wrong decision, or unless it is manifest from the case as a whole that the judge has been clearly wrong in the exercise of his discretion and that as a result there has been misjustice.” 66.Section 296(2) of the Penal Code provides;296(2)If the offender is armed with any dangerous or offensive weapon or instrument, or is in company with one or more other person or persons, or if, at or immediately after the time of the robbery, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death.” 67.The offence of robbery with violence attracts a sentence of death. The Supreme Court of Kenya emphasized in the case of Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) (Petition E018 of 2023) [2024] KESC 34 (KLR) (12 July 2024) (Judgment) that until a challenge to mandatory sentences is taken up before the courts all the way to the Supreme Court, such sentences are lawful and cannot be interfered with. 68.Additionally, in the case of Wamwoma vs. Republic (Criminal Appeal 19 of 2018 [2024] KECA 546 (KLR) it was stated as follows:“On the issue of sentence, the appellant was sentenced to the mandatory death sentence as provided for the offence of robbery with violence under Section 296(2) of the Criminal Procedure Code. The appellant contended that the sentence imposed upon him was unconstitutional. However, in Francis Karioko Muruatetu & Another v Republic; Katiba Institute & 5 Others (amicus curiae) (2021) eKLR, (Muruatetu 2), the Supreme Court clarified that notwithstanding its holding in Muruatetu that the mandatory nature of the death sentence under Section 204 of the Penal Code is unconstitutional, the death sentence in regard to the offence of robbery with violence under Section 296(2) remains valid until the constitutional validity of that sentence is fully argued before the High Court and escalated to the Court of Appeal. As this is yet to be done, the sentence of death that was imposed upon the appellant remains a lawful sentence.” 69.The sentences imposed were thus legal. I do note however that the trial court ought to have kept the sentence of death in count 2 in abeyance having sentenced the Appellant to death in count 1. I direct that the same be held in abeyance. 70.The upshot of the foregoing is that the Appeal is dismissed in its entirety for lack of merit. DATED SIGNED AND DELIVERED VIRTUALLY THIS 25TH DAY OF MAY 2026A.K. NDUNG’UJUDGE